DTE Energy Comments Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure - EPA-HQ-OLEM-2019-0172 - Regulations.gov
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DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
January 31, 2020
COMMENTS OF DTE ENERGY ON EPA’S PROPOSED HAZARDOUS AND SOLID WASTE
MANAGEMENT SYSTEM: DISPOSAL OF COAL COMBUSTION RESIDUALS FROM ELECTRIC
UTILITIES; A HOLISTIC APPROACH TO CLOSURE PART A: DEADLINE TO INITIATE
CLOSURE
40 C.F.R Part 257
Docket ID No. EPA-HQ-OLEM-2019-0172
FRL-10002-02-OLEM
84 Fed. Reg. 65941 (December 2, 2019)
Executive Summary
DTE Energy (DTE) appreciates this opportunity to comment on the U.S. Environmental Protection
Agency’s (EPA or Agency) proposed “Hazardous and Solid Waste Management System: Disposal of
Coal Combustion Residuals From Electric Utilities; A Holistic Approach to Closure Part A: Deadline
To Initiate Closure” (84 FR 65941), that proposes revisions to the April 17, 2015 “Hazardous and
Solid Waste Management System: Disposal of Coal Combustion Residuals from Electric Utilities”
(80 FR 21302) (CCR Rule). The proposed revisions (herein referred to as the Part A proposal)
were published in the Federal Register on December 2, 2019. The EPA is accepting public
comments on the 2019 proposal until January 31, 2020. DTE is pleased to take this opportunity
and respectfully submits this document in response to EPA’s request for comment on the proposal.
DTE is a diversified energy company, headquartered in Detroit, Michigan that is involved in the
development and management of energy-related businesses and services nationwide. Our
operating units include an electric utility (DTE Electric) and a natural gas utility (DTE Gas) which
provide electric and/or gas services to residential, business and industrial customers throughout
Michigan. The DTE portfolio also includes non-utility energy businesses focused on power
generation and industrial projects, natural gas pipelines, gathering and storage, and energy
marketing and trading.
1DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
DTE Electric generates, transmits and distributes electricity to 2.2 million customers in southeast
Michigan. With an approximately 11,000-megawatt system capacity, the company uses coal,
nuclear fuel, natural gas, hydroelectric pumped storage and renewable sources to generate its
electrical output. Founded in 1903, DTE Electric is the largest electric utility in Michigan and
among the largest in the nation.
The Utility Solid Waste Activities Group (USWAG) is a trade association of over 130 utility
operating companies, energy companies and industry associations. As a member of USWAG, DTE
has read and supports the comments filed by USWAG in this docket. DTE specifically wants to
emphasize support of the following excerpt from USWAG’s comments in this docket:
“The October 2018 Mandate is Too Early of a Start Date for USWAG Units
Before discussing EPA’s proposed revisions to the rule’s alternative closure provisions, it is
important to address EPA’s suggested “start date” for calculating the amount of time to
initiate closure. EPA is proposing that the start date for the amount of time to initiate
closure for units subject to forced closure as a result of the USWAG decision should be
October 15, 2018, the date of the issuance of the court’s mandate, because “EPA believes
that owners and operators of unlined CCR surface impoundments would have started
preparing for such event upon issuance of the mandate.” 1
This is a complicated issue, as
even EPA evaluated different dates in its rulemaking process for what should constitute the
appropriate “start time” for developing alternative disposal capacity.2 What is clear from
the USWAG decision is that the court vacated 40 C.F.R. § 257.101(a) – the provision
allowing unlined units to operate until they leak – based on the rulemaking record before it
at the time.3 The court did not say that EPA could never develop a record demonstrating
that impoundments affected by that decision could meet the subtitle D protectiveness
standard. In other words, the USWAG decision left open the possibility that EPA, in a
subsequent rulemaking, could revise the record and propose a rule that would allow for
certain “unlined” CCR impoundments to continue operating.
1
84 Fed. Reg. at 65951
2
Id. at 65951 (evaluating both the date of the Waterkeeper decision and the USWAG mandate as “start dates”).
3
901 F.3d at 429–430; see also 84 Fed. Reg. at 65945 (“[T]he D.C. Circuit stated that, based on the record before
the court, all unlined surface impoundments must cease receiving waste, whether or not the unit is leaking.”).
2DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
USWAG submits that this is precisely what EPA is planning to do for USWAG units – i.e.,
units that are not leaking and meet all of the rule’s location standards, including
impoundments that meet the clay liner criteria vacated by the USWAG court (formerly 40
C.F.R. § 257.71(a)(1)(i)). While EPA has not developed “a nationwide risk assessment of
continued operation” of all unlined impoundments, it has made clear that, for USWAG units,
it is planning on issuing a proposal–now pending at the Office of Management and Budget
(“OMB”) 4
– that would allow facilities to demonstrate that clay-lined or other liner systems
used for these units are just as protective as the liner criteria that the USWAG court found
met RCRA’s protectiveness standard.
Therefore, it is still unclear whether, as the result of the USWAG decision, these units will, in
fact, be required to close. The purpose of this proposal is to implement the USWAG
decision,5 but, as the proposal pending at OMB makes clear, EPA has not yet decided
whether that decision will require all USWAG units, or a subset of these units, to close. The
owners/operators of these impoundments are caught in regulatory limbo – unsure of
whether they will be required to develop alternative disposal capacity and close or if they
will be able to qualify for the liner equivalency demonstration and be allowed to continue
operating. Because of this regulatory uncertainty, and with the clock ticking, these facilities
have had no option but to begin taking steps to develop alternative disposal capacity to
replace units that may in fact not be required to close.
Consistent with the principles of fair notice, it is fundamentally unfair to hold
owners/operators of USWAG units to an October 15, 2018 start date for developing
alternative disposal capacity when it is still unclear what the law will in fact require.6
USWAG therefore believes that it is only fair that the start date from which to calculate the
time for initiating closure for USWAG units should be promulgation in the Federal Register of
the pending proposal at OMB. Only then (and arguably later, depending on the contents of
4
Executive Order Submissions Under Review, Office of Mgmt. & Budget (last updated Jan. 8, 2020),
https://www.reginfo.gov/public/do/eoReviewSearch. EPA’s latest regulatory agenda describing the purpose of this
proposed rulemaking provides, in relevant part, that “This rule would address a provision in that court decision [the
USWAG decision] and provide a mechanism in which unlined surface impoundments meeting strict criteria would be
allowed to continue to operate.”). See Agency Rule List – Fall 2019, Environmental Protection Agency, Office of
Mgmt. & Budget, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=2050-AH11.
5
84 Fed. Reg. at 65941 (EPA is publishing this proposal so that the regulations ns “Therefore, part of this proposed
rulemaking action updates the regulations to reflect the provisions that the Court vacated.”).
6
Satellite Broad. Co. v. FCC, 824 F.2d 1, 3 (D.C.Cir.1987) (“Traditional concepts of due process incorporated into
administrative law preclude an agency from penalizing a private party for violating a rule without first providing
adequate notice of the substance of the rule.”); Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C.Cir.1986) (
“[T]he due process clause prevents ... the application of a regulation that fails to give fair warning of the conduct it
prohibits or requires.”).
3DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
the proposed rule) will the regulated community be on notice of a proposed regulatory path
for these impoundments and what the law may require for their continued operation. At a
minimum, the final rule must provide a mechanism to stay the deadline for ceasing the
receipt of wastes for USWAG units that file liner equivalency demonstrations under the
upcoming proposal.”
Monroe Power Plant Fly Ash Basin Closure Timeline
In order to demonstrate that the Part A proposal does not allow enough time to develop
alternative capacity, DTE is providing this site-specific analysis of the time necessary to develop
alternative capacity in order to initiate closure of the Fly Ash Basin (FAB) at DTE’s Monroe Power
Plant (MPP) – a CCR surface impoundment that fits the category of a USWAG unit. The following
describes the projects, and schedule of such projects, necessary to both prepare for, and initiate
closure of the MPP FAB overlying glacially-compacted clay. As discussed below, the FAB is subject
to the August 31, 2020 deadline presented in the Part A proposal, to initiate closure due solely to
the USWAG court decision that all unlined impoundments, irrespective of the fact they are having
no impact on groundwater, must initiate closure. Therefore, prior to the mandate in the USWAG
decision, DTE was not planning to initiate closure of the FAB by August 31, 2020. Given this short
time frame, it is simply not possible, given the myriad of complex and inter-related steps
necessary to build alternative disposal capacity to replace the FAB, for DTE to take the FAB off-line
and initiate closure by August 31, 2020. These points are discussed below.
Monroe Power Plant Fly Ash Basin
The MPP is DTE’s largest power generating facility providing about 40% of DTE’s total
electric output with a capacity of 3,101 MW. MPP is the fourth largest coal plant in the
nation and provides electricity to approximately 900,000 customers in southeast Michigan.
The four-unit generating plant has a dual (dry or wet) fly ash handling system for Units 1 &
2. A portion of the fly ash generated from Units 1 & 2 has been transported dry and sold for
beneficial use. The remaining fly ash from Units 1 & 2 is transported in water to the Fly Ash
Basin (FAB) through a backup wet sluicing system. Fly ash from Units 3 & 4 is currently
transported in water to the FAB.
4DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
The MPP FAB consists of a 331-acre CCR surface impoundment, and a 79-acre dry CCR
landfill on top of a portion of the impoundment. The FAB was constructed from 1973 to
1974 and the entire footprint (410-acres) has been utilized to store sluiced CCR and treat
fly ash transport water to meet the requirements of the National Pollutant Discharge
Elimination System (NPDES) permit before discharging into Lake Erie. In July 2015, DTE
received a permit to construct the Landfill in the north-western quadrant of the site and
started receiving dry CCR later that year. Both the Landfill and the FAB surface
impoundment operate under the same Solid Waste Operating License issued by the
Michigan Department of Environment, Great Lakes, and Energy (EGLE).
The uppermost aquifer underlying the MPP FAB as defined in 40 CFR §257.53 consists of
saturated limestone present beneath at least 23 feet and up to 54 feet of thick contiguous
glacially-compacted clay that serves as a natural confining hydraulic barrier that isolates the
underlying uppermost aquifer. At its deepest incised area, the MPP FAB has a minimum of
23 feet of glacially-compacted clay separating the bottom of the FAB from the uppermost
aquifer. Near the north end of the FAB where the hydraulic gradient is steeper, the clay is at
least 30 feet thick. The overlying low-permeability clay has a hydraulic conductivity
exceeding the requirements of the CCR liner design criteria. Given this, it is not surprising
that groundwater monitoring data generated by the facility pursuant to the CCR rule shows
that the FAB is having no impact whatsoever on groundwater quality. The facility is still in
detection monitoring in accordance with §257.94 of the CCR rule and given the glacially-
compacted clay that serves as a natural confining hydraulic barrier, there is absolutely no
reasonable basis to expect that the FAB will ever be the cause of a statistically significant
increase (SSI) over groundwater background levels leading to assessment monitoring, let
alone ever be the cause of an SSI over the CCR rule’s groundwater protection standards
that would lead to corrective action. In short, the FAB will never impact groundwater.
Nonetheless, without appropriate changes to the CCR rule, the USWAG Decision (which
vacated and remanded 40 CFR 257.71 (a)(1)(i) to EPA) would subject the FAB to an
untenable rapid forced closure time frame.7
7
The FAB receives fly ash transport water (FATW) and would thus be subject to the 2015 Revised Effluent
Limitation Guidelines (ELG) for the steam-electric generating station source category. Currently, there is
approximately 620,000,000 gallons of water in the FAB, and it receives approximately 19,000,000 gallons of
additional FATW per day. The treated water is discharged in accordance with a NPDES permit.
5DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
DTE must implement major capital investment projects to convert the fly ash handling
process from a wet to a dry system. In order to continue operation of the MPP, and provide
electric service to Southeast Michigan, the FAB must continue to receive sluiced fly ash until
such time that the dry fly ash conversion projects are complete and the dry ash handling
systems are operational. DTE is diligently pursuing the implementation of the dry fly ash
conversion, as detailed in the following project summary.
MPP Dry Fly Ash Conversion Project
In order for MPP to cease placing CCR at the FAB and initiate closure, the current sluiced
ash handling system must be converted to a dry system. The project schedule outlined
below is the most accelerated schedule that can practically be undertaken to develop
alternative disposal capacity for the FAB. In short, the MPP cannot continue generating
electricity and initiate closure of the FAB by August 31, 2020. Power generation would be
disrupted, causing grid instability, forced outages, and reliability issues. It is not reasonable
to believe that the following construction schedule could be compressed to the extent that
DTE would be able to stop sluicing by the forced closure date. Provided below is an outline
of the project schedule and description of the activities necessary for implementation:
Design – DTE and potential contractors will continue to perform engineering design
elements of this project through July of 2021, some of which will be performed in
conjunction with procurement/construction activities. This involves civil, structural,
architectural, mechanical, electrical, and Instrumentation and controls engineering.
The most challenging aspects of the design include the pipe routing through the
existing plant area and out to the silo location, electrical load design to integrate the
new electrical loads into the plants existing capacity, and all foundation design at the
silo location. Further, more detailed geotechnical investigation is required by the
winning bidder to confirm seismic class and stability of the proposed foundation
systems as part of detailed design. The long design duration is a result of our current
design status which is at approximately 20-25%. The front-end planning phase of
this project has been in progress since 2017 as DTE awaited a final rule; however,
was never intended to provide a detailed design, but rather assist DTE in cost
forecasting and technology selection.
Procurement – upfront activities such as geotechnical investigations, surveying,
pilot trenching, and lead and asbestos surveying are in process, and are expected to
6DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
be completed by February 2020. Large scale equipment such as fly ash handling
equipment, silos, compressed air equipment, pre-engineered buildings, steel,
electrical equipment/instrumentation require long lead times, the longest of which is
over 2-years to design, manufacture, and deliver the 4,000-ton silo required for this
project. Contract award of long lead equipment items is expected to occur by Q1
2020.
Construction – the construction schedule by design is sequenced to align with the
outage schedule for each of the four MPP units. The schedule is also based on an EPC
contract approach, estimated lead times for engineered equipment items, scheduled
major outages for the fly ash handling system tie-ins for Units 1-3, and using an
extended spring outage for the Unit 4 outage construction. Project milestones are as
follows
o April 2019: Initial Engineering Activities Commence (complete)
o 1st quarter 2020: DTE board approval of the project
o July 2020: Commence construction (Unit 1 & 2 pre-outage)
o June 2022 – Commence construction (Unit 3 & 4 pre-outage)
o Units 1-4 outages for project tie-ins will occur between Fall of 2022 and Fall of
2023. Post-outage construction tasks are anticipated to be complete by the
end of 2023.
Note that this timeframe cannot be accelerated, as proposals for construction
are already out to bid and project award is scheduled for the Q1 2020.
Moreover, attempting to change this timeframe, even if possible, and taking
the FAB out of service prematurely, would mean the MPP would have to cease
power generation, as there would be no place to manage the CCR currently
managed in the FAB. Given the material power delivery contribution provided
by the MPP to the Midcontinent Independent System Operator (MISO) grid,
the premature closure of the FAB would potentially cause significant
interruption to the MISO grid and associated power reliability concerns for
MPP’s 900,000 customers. The construction sequence has been designed to
coincide with already scheduled periodic unit outages in coordination with the
MISO to complete the project tie-ins and maintain grid stability and electrical
reliability.
7DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
DTE and third-party consultants developed the schedule to implement the dry ash
conversion project with the following considerations in mind:
The schedule is constrained by the timing of procuring large-scale equipment. Lead-
time is required to account for design, manufacturing, and delivery.
The installation of the dry ash handling system must be scheduled in coordination
with generating unit outage schedules. The generating unit outage schedules are
developed to ensure adequate system generating capacity is available to meet
customer electricity demand and maintain adequate reserve margins for electric grid
reliability. While as much construction work is completed before and after the
generating unit outages as possible, certain construction and installation work
required to tie the equipment in to the generating units will need to be completed
during the scheduled unit outages for safety and maintaining equipment reliability.
Pre-outage activities include: construction of the silo and all associated components
necessary for operation of the silo, two vacuum-to-pressure transfer buildings with
all the mechanical, electrical, instrumentation and controls, and safety equipment. In
order to minimize the time required to successfully complete installation of each
system during the unit outage, all possible activities and construction will be
completed pre- and post-outage, including pre-fabrication, pre-staging and pre-
assembling. Outage tie-in tasks include: installing the pre-staged conveyance piping
from the hoppers to the transfer buildings and from the transfer buildings to the silo,
implementation of logic programming and hopper modification work including
discharge valve replacement. Post outage work includes: functional, performance
and reliability testing, and any warranty issues that arise. For plants like MPP that
have multiple generating units, outages for those units are seldom concurrent, again
to maintain electric grid reliability. This means a plant like MPP with multiple units
will need to build an installation schedule integrated into a series of sequential unit
outages, further adding to the required time to install and start up the systems.
Michigan’s climate and weather affects the construction schedule of the dry ash
conversion project. Frozen ground conditions will slow or prohibit excavations and
affect concrete construction. Further, frost laws prohibit the transportation of heavy
materials during certain times of the year, and the typical construction season is
March through November. All of these issues affect the timing of this project.
8DTE Energy Comments
Proposed EPA Rule: A Holistic Approach to Closure Part A: Deadline To Initiate Closure
EPA–HQ–OLEM–2019–0172
January 31, 2020
Safety considerations must also be accounted for. Safety factors can limit the speed
at which construction can be accomplished, and how many workers/pieces of
equipment can be deployed before employee and contractor safety are affected.
Several areas in which construction will take place are congested and in highly active
portions of the plant, and therefore the logistics and safety measures will be closely
managed. DTE places health and safety as the Company’s top priority and will not
expedite construction in any way whatsoever if it places worker safety in jeopardy.
Prior to ceasing the placement of waste into the FAB, the new dry ash handling
system must pass performance testing to ensure safe and reliable operation.
Finally, a new air permit is required for the operation of the dry ash system, the lead
time to process and obtain the permit is approximately one-year. Additional permits
required to perform the closure of the FAB would also be required.
DTE appreciates the opportunity to submit comments regarding EPA’s Part A proposal.
Questions or comments regarding this comment can be directed to Christopher Scieszka
(christopher.scieszka@dteenergy.com)
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